International Law of the Sea

Importance of the Law of the sea

• An indispensable part of public international law
• The law that governs:
• -the vast oceans of the World, covering three fourths of
the Planet Earth
 The natural resources of the seas
 Ships that are sailing on the seas
 protection and preservation of the marine
environment
Land and Sea Ratio
 Five main benefits of the seas
• Security strategic
• Food
• Natural resources
• Trade/economy
• Transportation
 Security /Strategic
(Naval powers who could control the oceans
rule the World)
Food
Natural Resources
Transportation
 History of the Law of the Sea

• Freedom of the seas

• Roman Law : res nullius (Nobody’s thing), res
communis (common heritage of mankind)
• The concept of the maritime belt (part of the sea over
which the coastal State can exercise sovereignty),
territorial waters or territorial sea
• 'freedom of the seas' concept, dating from the 17th century:
national rights were limited to a specified belt of water
extending from a nation's coastlines, usually 3 nautical miles
(5.6 km) (Three-mile limit), according to the 'cannon shot' rule
developed by the Dutch jurist Cornelius van Bynkershoek.
• All waters beyond national boundaries were considered
international waters: free to all nations, but belonging to none
of them (the mare liberum principle promulgated by Hugo
Grotius)
• In the early 20th century, some nations expressed their desire to
extend national claims: to include mineral resources, to protect
fish stocks, and to provide the means to enforce pollution
controls.
• UNCLOS I 1956
• Convention on the Territorial Sea and Contiguous Zone, entry into force:
10 September 1964
• Convention on the Continental Shelf, entry into force: 10 June 1964
• Convention on the High Seas, entry into force: 30 September 1962
• Convention on Fishing and Conservation of Living Resources of the High
Seas, entry into force: 20 March 1966
Although UNCLOS I was considered a success, it left open the important
issue of breadth of territorial waters

• UNCLOS II 1960 : the six-week Geneva conference did not result in any
new agreements
 UNCLOS III
• The United Nations Convention on the Law of the Sea
(UNCLOS) is the international agreement that resulted
from the third United Nations Conference on the Law of
the Sea (UNCLOS III), which took place between 1973 and
1982.
• Contains 320 articles and 9 annexes
• entered into force on 16 December 1994.
• Current member states- 168
• Malaysia ratified (14 October 1996)
 Legal Significance of the UNCLOS 1982
• It is the Constitution of the Seas, a single and
comprehensive Convention encompassing all matters
relating to the sea
• Consensus of territorial sea limit
• New legal regime of EEZ
• New Legal Regime of International Sea Bed Area (The Area)
• Establishment of the International Tribunal for the Law of
the Sea (ITLOS)
• Art. 311 (1): UNCLOS prevails over four Geneva Conventions
 Article 2
Legal status of the territorial sea, of the air space
over the territorial sea and of its bed and subsoil
• The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, ……to an adjacent belt of
sea, described as the territorial sea.
• 12 nautical miles from the baseline (Art 3)
 Baseline and Measurement of TS
• Baseline: the line along the coast from which the TS
and other maritime zones are measured.
• Two types of Baselines: Normal and Straight
• Normal Baseline (Art 5): along the coast (low
waterline)
• Low water line: the line along the coast at the time of
low-tide
Customary rule: the Anglo-Norwegian fisheries
case
• Much of the coast of Norway is deeply indented and
fringed by numerous island, islets, rocks and reefs.
• Since the middle of 19th century, Norway used as the
baseline a series of straight lines connecting the
outermost points on these features.
• In the 1930s, the UK began to object to this method of
drawing the baseline.
• In 1935, a dispute over the Norwegian decree applying
straight baselines was brought before the ICJ.
 Norwegian Fisheries Case
• According to Norwegian Degree of 1935, Norway’s TS was not
measured from the low water line along the coast, but from the
straight baselines linking the outermost islands and headlands of
the coast.
• The southern portion of the lines embraced clusters of islands. The
northern portion covered a heavily indented coastline.
• The ICJ upheld the Norwegian delimitation, stating that straight
baseline method had been used by several states without
objection.
• It has thus been established as rule of CIL.
• This ‘straight baseline’ method was eventually incorporated in Art.7
of the UNCLOS 1982.
 Straight baselines Art. 7(1)
• (a) where the coastline is deeply indented and cut into
or;
• (b) if there is a fringe of island along the coast in its
immediate vicinity
• The method of straight baseline joining the appropriate
point may be employed.
• Norwegian Fisheries Case 1951 ICJ Rep 116
 Maritime Zones (Overview)
• Territorial Sea
• Contiguous Zone
• Exclusive Economic Zone
• Continental Shelf
• High Seas
 Internal Waters (Art. 8)
• waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the
State.
 Article 13 Low-tide elevations
• A low-tide elevation is a naturally formed area of land which
is surrounded by and above water at low tide but
submerged at high tide.
• Where a low-tide elevation is situated wholly or partly at a
distance not exceeding the breadth of the territorial sea
from the mainland or an island, the low-water line on that
elevation may be used as the baseline for measuring the
breadth of the territorial sea.
• Where a low-tide elevation is wholly situated at a distance
exceeding the breadth of the territorial sea from the
mainland or an island, it has no territorial sea of its own.
 Islands (Art.121)
• An island is a naturally formed area of land, surrounded by
water, which is above water at high tide.

• the territorial sea, the contiguous zone, the exclusive economic

zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to
other land territory.

• Rocks which cannot sustain human habitation or economic life

of their own shall have no exclusive economic zone or
continental shelf.
 Islands
• Every rock or islet, no matter how small in size, has a
territorial sea of its own.

• But rocks which cannot sustain human habitation or

economic life of their own shall have no EEZ or CZ. (Art 121
(3))

• Art 121 (3) is poorly drafted. There is no definition of ‘rock’

or ‘human habitation’ or ‘economic life’ of their own.
• Case Study: Pulau Batu Puteh case
 Right of innocent passage

• Subject to this Convention, ships of all States,

whether coastal or land-locked, enjoy the right
of innocent passage through the territorial sea.
 Article 18 Meaning of passage
• Passage means navigation through the territorial sea for the purpose of:
(a) traversing that sea without entering internal waters or calling at
a roadstead or port facility outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead
or port facility.
Passage shall be continuous and expeditious.
Passage includes stopping and anchoring only in so far as necessary by
force majeure or distress or for the purpose of rendering assistance to
persons, ships or aircraft in danger or distress.
 Article 19 Meaning of innocent passage
• Passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State.
• Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order or security of the
coastal State if in the territorial sea it engages in any of the
following activities:
• any fishing activities
• the carrying out of research or survey activities
• Any other activities not having a direct bearing on passage.
• PP v Narogne Sookpavit [1987] 2 MLJ 100

• HELD: The passage of Thai fishermen within the

Malaysian TS was not an innocent passage because it
contravened the domestic law of Malaysia.

• Corfu Channel Case (UK v Albania) (1964)

• Danger to navigation
 Straits used for international navigations
• A ‘strait’ is a narrow stretch of sea connecting two
extensive areas of sea (or a narrow passage connecting
two sections of high seas).
 The Problem
• Not every geographical strait presents a problem.
• Problem arose when:
• -Breadth of the territorial sea expanded from 3 to 12
nautical miles and thus most of the international straits have
become part of the TS of Straits states; disappearance of
high seas corridors.
• Straits State wanted to stick to the regime of innocent
passage.
• But the regime of ‘innocent’ passage was not acceptable to
maritime States, which claimed for ‘freedom of navigation’.
• This is the problem of what have come to be known as
straits used for international navigation.
 Corfu Channel case
f the law prior to UNCLOS III
• The key passage in the Court’s judgment is as follows:
• It is, in the opinion of the Court, generally recognized
and in accordance with international custom that States
in time of peace have a right to send their war ships
through straits used for international navigation
between the two parts of the high seas without the
previous authorization of a coastal State, provided that
the passage is innocent. Unless otherwise prescribed in
an international convention, there is no right for a
coastal State to prohibit such passage through straits in
time of peace.
• UNCLOS I and the Geneva Convention Article 16 (4) of the
Geneva convention on the Territorial sea and Contiguous Zone
reads as follows: “There shall be no suspension of innocent
passage of foreign ships through Straits which are used for
international navigation between one part of the high seas and
another part of the high seas or the territorial sea of a foreign
State.
 UNCLOS I and the Geneva Convention [Cont.]
• Article 16 (4) extends to straits between the high seas
and the territorial sea of a foreign State.
• This extension was strongly opposed by Indonesia and
Saudi Arabia because it would raise the Straits of Tiran
to the “international strait’ status.
• Unhappiness over this issue was indicated.
• Despite the efforts of UNCLOS I, there was still a
measure of uncertainty.
The negotiations during the UNCLOS III: Freedom of passage v.
Innocent passage
• The negotiations during the UNCLOS III reflected the rivalry
between two competing interest groups:
• (1) the maritime powers wishing to freely navigate through the
strait; and
• (2) Straits States who were concerned to protect its security
and other interests in their territorial waters.
 The interests of the maritime powers: freedom of passage/ free
transit
• The main problem: there were some 116 straits which would
become entirely territorial sea straits if a 12- mile breadth were to
be generally accepted, whereas, at that time, there existed in these
straits a central belt of high seas in which the freedom of the high
seas might be enjoyed.
• The idea of freedom of passage/ free transit is primarily based on
the freedom of navigation, one of the traditional freedoms of the
high seas.
• All ships are free to navigate on the high seas (Art. 87).
• The flag State has an exclusive jurisdiction over ships flying their
flags on the high seas (Art. 92; Lotus case).
 The interests of coastal States: innocent
passage
• The coastal States were firm in their opposition to anything
more than ‘innocent passage’ through straits.
• Example: draft articles proposed by the following eight
States: Cyprus, Greece, Indonesia, Malaysia, Morocco,
Philippines, Spain and Yemen (the Eight Power draft).
• Regarding the Straits of Malacca and Singapore, in the Joint
Statement dated 16 November 1971, Indonesia and
Malaysia agreed that the Straits of Malacca and Singapore
are not international straits, while fully recognizing their use
for international shipping in accordance with the principle of
innocent passage.
• Singapore simply took note of their position.
Strait of Malacca
 Malaysia’s stand in UNCLOS III in respect of the Straits of
Malacca and Singapore

• However, during UNCLOS III, the three States reached an understanding

with the principal user States, which allowed them to accept the
application of the UN Convention to the straits, while safeguarding their
powers of enforcement.
• (See Letter dated 28 April 1982 from the Representative of Malaysia to
the President of the Conference A/CONF. 62/L. 145)
 Transit passage: the compromise formula
• After long and arduous negotiations, the two competing
interest groups finally reached agreement to adopt the
compromise formula of the ‘transit passage” regime.
• This agreement on transit passage is an important component
of the overall “package” of the new Convention.
• Acceptance of this regime made it possible for the Conference
to reach agreement on 12 nautical miles as a maximum
breadth of the territorial sea.
 The regime of straits under the UN Convention on the Law of
the Sea 1982
• UNCLOS III finally adopted the United Nations Convention on the Law of
the Sea on 30 April 1982.
• Part III of the Convention (Articles 34 to 45) deals with “Straits Used for
International Navigation.”
• the overall idea of the UNCLOS 1982 Under Part III of the UNCLOS, the
regime applicable to any particular strait depends upon the category into
which it falls.
• The four categories of straits :
1. Straits governed by long-standing special conventions;
2. Straits with central corridors of high seas or EEZ;
3. Straits subject to the regime of innocent passage; and
4. Straits subject to the regime of transit passage
Straits subject to the regime of innocent passage
• Under the UNCLOS, the two special types of straits are subject
to the regime of innocent passage.
• First, under Article 38 (1), a strait formed by an island of a State
bordering the strait and its mainland, where there exists
seaward of the island a route of similar convenience through
high seas or EEZ, is entirely excluded from the ‘transit passage’
regime.
• This is known as Messina exception because the Straits of
Messina between Italy and Sicily illustrates this very well.
Strait of Messina (Sicily)
• Secondly, under Article 45(1) (b), the regime of innocent
passage applies in straits connecting a part of the high seas or
an exclusive economic zone and the territorial sea of a foreign
State. A good example would be the Straits of Tiran.
• In respect of both categories of straits, there shall be no
suspension of innocent passage through them (non-
suspendable innocent passage) (Article 45 (2).
Strait of Tiran
 Straits subject to the regime of transit passage
• Article 37: The regime of transit passage applies to straits which are
used for international navigation between one part of the high seas
or an EEZ and another part of the high seas or an EEZ.
• For the application of the regime of transit passage, two conditions
must be met: geographical and functional.
• The geographical condition is that the strait connects one part of
the high seas or an EEZ and another part of the high seas or an EEZ.
The functional condition is that the strait is ‘used for international
navigation’.
• These two criteria are taken (and adapted) from the judgment of
the ICJ in the Corfu Channel case.
 Are Straits of Malacca and Singapore straits used
for international navigation?
• Do the Straits of Malacca and Singapore satisfy these criteria? Yes.
Why?
• (a) Because they connect one part of the high seas, the Indian
Ocean, with another part of the high seas, the South China Sea.
and
• (b) because these Straits have been used for hundreds of years for
international navigation.
• As the Straits of Malacca and Singapore are straits used for
international navigation as defined under Article 37 of the
Convention, they are subject to the transit passage regime.
Straits of Malacca and Singapore
 What is transit passage?
• Transit passage is defined by Article 38(2) as follows: Transit
passage means the exercise in accordance with this Part of the
freedom of navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait between one part
of the high seas or an exclusive economic zone and another part of
the high seas or an exclusive economic zone. However, the
requirement of continuous and expeditious transit does not
preclude passage through the strait for the purpose of entering,
leaving or returning from a State bordering the strait, subject to the
conditions of entry to that State.
 The essence of transit passage
• The essence of transit passage is reflected in the phrase ‘freedom
of navigation … solely for the purpose of continuous and
expeditious transit.’
• Because of the phrase “freedom of navigation,’ one might think
that the passing ships can freely do anything they like.
• The exercise of freedom of navigation is for one purpose only – that
of continuous and expeditious transit.
• Since it is a transit through an area subject to the sovereignty of the
coastal State, this freedom of navigation has to be subject to a
number of limiting rules designed to protect the interests of the
coastal State and promote safety of navigation.
 Transit passage: somewhere between freedom of
passage and innocent passage.
• The foreign ships, when exercising transit passage, are not as
free as when they are exercising freedoms of the high seas.
• On the other hand, they are freer than when they are
exercising the right of innocent passage in the territorial sea of
a coastal state.
• This new regime of “transit passage”, therefore, lies
somewhere ( or half-way) between “freedom of passage” and
“innocent passage.”
 Duties of ships and aircraft during transit passage
• Under Article 39(1), while exercising the right of transit passage,
ships and aircraft are required to:
• (a) proceed without delay through or over the strait;
• (b) refrain from any threat or use of force against the sovereignty,
territorial integrity or political independence of States bordering
the strait, or in any other manner in violation of the principles of
international law embodied in the Charter of the United Nations;
• (c) refrain from any activities other than those incident to their
normal modes of continuous and expeditious transit unless
rendered necessary by force majeure or by distress;
• (d) comply with other relevant provisions of this Part.
• Article 39(2): Ships in transit are required to:
• (a) comply with generally accepted international regulations,
procedures and practices for safety at sea, including the
International Regulations for Preventing Collisions at Sea;
• (b) comply with generally accepted international regulations,
procedures and practices for the prevention, reduction and control
of pollution from ships.
• The effect of this provision is to incorporate by reference all the
‘generally accepted’ international conventions: SOLAS conventions
and the IMO pollution conventions would be applicable to ships in
the strait.
• Article 39(3): Aircraft in transit are required to:
• (a) observe the Rules of the Air established by the International
Civil Aviation Organization as they apply to civil aircraft; state
aircraft will normally comply with such safety measures and
will at all times operate with due regard for the safety of
navigation;
• (b) at all times monitor the radio frequency assigned by the
competent internationally designated air traffic control
authority or the appropriate international distress radio
frequency.
• Sea lanes and traffic separation schemes Under Article 41, the
coastal States may designate sea lanes and traffic separation
schemes in the strait.
• But two requirements must be complied with in doing so:
• (a) The sea lanes and traffic separation schemes must conform
to generally accepted international regulations”; and
• (b) They must first be submitted to and adopted by the
International Maritime Organization (IMO).
• In the case of the Straits of Malacca and Singapore:
• (a) The three Straits States, Indonesia, Malaysia and Singapore
have cooperated with one another, consulted the major user
States, and submitted their proposals to the IMO.
• (b) IMO has adopted their proposals for deep draft vessels and
VLCCs to maintain a minimum, under-keel clearance of 3,5
metres, to prescribe traffic separation schemes in 3 critical
areas and to designate a deep water route in the Straits of
Singapore for ships whose draught exceeds 15 metres.
 Duties of the strait State
• Article 42(2): Such laws and regulations shall not discriminate
in form or in fact among foreign ships or their application have
the practical effect of denying, hampering or impairing the
right of transit passage as defined in this section. Article 44:
States bordering straits shall not hamper transit passage and
shall give appropriate publicity to any danger to navigation or
overflight within or over the strait of which they have
knowledge. There shall be no suspension of transit passage.
 Cooperation between straits States and user States
• Article 43 User States and States bordering a strait should by agreement cooperate:
 (a) in the establishment and maintenance in a strait of necessary navigational and safety
aids or other improvements in aid of international navigation; and
 (b) for the prevention, reduction and control of pollution from ships.

• The strait States perceive themselves as bearing the economic burdens of installing and
maintaining navigational and safety aids, and enduring pollution, without receiving any
corresponding benefit.
• They feel that the user States, which can benefit enormously by using the straits should
share this economic burden with strait States.
• This article is not mandatory. It contains no mechanisms to compel such cooperation among
User States and Straits States.
• It is, however, in the self-interests of both the User States and Straits States to cooperate.
Innocent passage and transit passage distinguished
• (1) Aircraft: There is no right of innocent passage for aircraft but
the right of transit passage is enjoyed by aircraft as well as ships.
(2) Submarines: Although submarines in innocent passage are
required to navigate on the surface and show their flags, there is no
such requirement for submarines in transit passage.
• (3) Nuclear powered ships: Innocent passage – (Article 23) Foreign
nuclear-powered ships and ships carrying nuclear or other
inherently dangerous or noxious substances shall… carry
documents and observe special precautionary measures
established for such ships by international agreements. Transit
passage – no special provision comparable to that.
• (4) Conditions relating to Sea lanes and traffic separation schemes:
Innocent passage – the coastal State is required simply to ‘take into
account’ the recommendations of competent international organizations.
Transit passage – the coastal State may designate and prescribe only after
its proposals have been adopted by the competent international
organization.
• (5) The conditions of transit passage (Article 39) and the subjects on which
the coastal State may make laws and regulations (Article 42) are less
numerous than those specified for innocent passage.
• (6) Cooperation between strait States and user States (article 43): There is
no corresponding provision in relation to the regime of innocent passage.
 Conclusion

• The primary legal regime for straits used for international navigation is
‘transit passage’.
• Transit passage is the exercise of freedom of navigation and overflight
solely for the purpose of continuous and expeditious transit of the strait. It
is a compromise formula and is somewhere (half-way) between ‘freedom
of passage. and ‘innocent passage’.
• Despite the considerable advances the development of the transit passage
regime contribute to the law of the sea, a number of practical problems
remain; one example is the issue of ‘enforcement’.
• These problems can be resolved only by the tripartite cooperation among
straits States, user States and the competent international organization
(IMO).
 The Right of Hot Pursuit ( Read p.284-289)
• Requirements of a lawful hot pursuit- Art 111 of the UNCLOS
1982
• Degree of force justifiable in the exercise of hot pursuit
• The doctrine of constructive presence